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South Dakota Public Utilities Commission Meeting
September 23, 2009 at 8:30 AM.
Room 413, Capitol Building
Pierre, South Dakota
MINUTES OF THE AD-HOC COMMISSION MEETING
Chairman Dusty Johnson called the meeting to order. Present were: Vice Chairman Steve Kolbeck; Commissioner Gary Hanson; Executive Director Patty Van Gerpen; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorneys John Smith and Rolayne Wiest; Staff Attorney Kara Semmler; Staff Analysts Bob Knadle and Nathan Solem; and Administrative Secretary Anissa Grambihler.
Joining the meeting by telephone were: James White, TransCanada Keystone Pipeline, LP; Bill Taylor, Woods, Fuller, Shultz & Smith, P.C., representing TransCanada Keystone Pipeline, LP; and Kelly Fuller, Plains Justice.
Also present were: Brett Koenecke, May, Adam, Gerdes and Thompson, LLP, and James Moore, Woods, Fuller, Shultz & Smith, P.C., representing TransCanada Keystone Pipeline, LP; and Paul Blackburn, Plains Justice, and Caitlin F. Collier, Collier Law Office, representing Dakota Rural Action.
Hydrocarbon Pipeline
Chairman Johnson stated that the Commission would allow each party a few minutes to give a general overview of their arguments and then would take each discovery request individually and allow argument. See link to listen to the September 23, 2009, Commission Meeting; http://www.puc.sd.gov/Dockets/HydrocarbonPipeline/2009/hp09-001.aspx Or see link to view transcript http://www.puc.sd.gov/commission/dockets/hydrocarbonpipeline/2009/hp09-001/092309hp09-001.pdf
Following discussion, Keystone and DRA each agreed that it would be acceptable to them for Keystone to provide the risk assessment for high consequence areas (HCA) with the HCA locations redacted. to grant the Motion in part with respect to DRA Request 1 to the extent of requiring Keystone to provide to DRA its risk assessment(s) for HCAs in South Dakota with the HCA location information redacted.
Chairman Johnson moved to grant the Motion to Compel in part with respect to DRA Request 1 to the extent of requiring Keystone to provide to DRA its risk assessment(s) for HCAs in South Dakota with the HCA location information redacted. Motion passed 3-0.
Following discussion, Keystone stated that it could provide documents in possession of both Keystone and affiliates related to equipment, methods and procedures for monitoring and maintaining depth of cover and would not object to production on DRA Request 2 if limited to that. DRA agreed that would be acceptable.
Chairman Johnson moved to grant the Motion to Compel in part with respect to DRA Request 2 to require Keystone to produce information of both Keystone and its affiliates related to equipment, methods and procedures for monitoring and maintaining depth of cover and to deny the Motion with respect to DRA Request 2 except with respect to such documents. Motion passed 3-0.
Keystone stated that it had produced all documents related to its abandonment policy including those of affiliates.
Vice Chairman Kolbeck moved to grant the Motion to Compel in part with respect to DRA Request 3 to require Keystone to provide documents in possession of Keystone and affiliates related to the Canadian National Energy Board (NEB) Land Matters Consultative and not limited to documents that can be found in the public domain. Motion passed 3-0.
Chairman Johnson moved to grant the Motion to Compel in part with respect to DRA Request 5 to the extent of requiring Keystone to produce non-privileged documents in its possession containing statements about oil spill liability provided by Keystone or its affiliates to non-privileged parties and to deny in part as to Request 5 with respect to other documents. Motion passed 3-0.
The Commission and parties engaged in a lengthy discussion of the process for preparation of the Emergency Response Plan and submittal to and approval by PHMSA and the role of DENR as the agency to whom the ERP is to be submitted for review. Vice Chairman Kolbeck moved to grant the Motion to Compel with respect to DRA Request 6 and require Keystone to provide all documents concerning preparation of the ERP. Chairman Johnson and Commissioner Hanson expressed concern with the relevance of the information and burdensomeness of the request other than the ERP itself since the ERP is a PHMSA regulated matter with state approval authority vested in DENR.
Vice Chairman Kolbeck moved to approve the Motion to Compel with respect to DRA Request 6 and require Keystone to provide all documents concerning preparation of the Emergency Response Plan to be submitted to PHMSA. Motion failed 1-2 (Johnson and Hanson dissenting).
Chairman Johnson moved to deny request number 6. Motion passed 3-0.
The Commission discussed Request 6 again and expressed the view that when a draft ERP has been completed, at least the draft and subsequent drafts should be produced to DRA and Staff. Keystone requested an opportunity to inquire into the status of development of the ERP and to report back to the Commission on the status and timeline of ERP development. The Commission took no further action pending such inquiry.
Following discussion, the Commissioners expressed concern that decisions regarding PHMSA's ABD-09-01 and Keystone's responses thereto are within the jurisdiction of PHMSA and preempted by federal law and therefore not within the Commission's jurisdiction,
Vice Chairman Kolbeck moved to deny to deny the Motion to Compel with respect to DRA Request 7 regarding additional documents responsive to PHMSA's ABD-09-01. Motion passed 3-0.
Commissioner Hanson moved to deny the Motion to Compel with respect to DRA Request 8. Motion passed 3-0.
Commissioner Hanson moved to grant in part with respect to DRA Request 9 to the extent of requiring Keystone to provide to DRA analyses of the chemical and physical composition of two crude oils likely to be transported by the Project that are representative of the two basic types of crude oil to be shipped and representative of the extremities of the spectrum of the oil types to be shipped. Motion passed 3-0.
Vice Chairman Kolbeck moved to grant the Motion to Compel with respect to DRA Request 10 to the extent of requiring Keystone to produce documents in its and its affiliates' possession related to the worst case spill analysis, including analyses and other input documents supporting, or used in the analysis of, the numerical values and conclusions contained in the analysis, subject to a protective order with respect to confidential materials and any special protective provisions required with respect to any HCA locations or other confidential HCA information. Motion passed 3-0.
Chairman Johnson moved to the Motion to Compel with respect to DRA Requests 12, 14 and 16 through 18, to deny the Motion with respect to DRA Requests 13 and 19, to grant the Motion with respect to DRA Request 15 to require Keystone to produce the uniform package supplied to prospective shippers, subject to a protective order, and to deny with respect to DRA Request 15 except for such documents. Motion passed 3-0.
Commissioner Hanson moved to deny the Motion to Compel with respect to DRA Request 23. Motion passed 3-0.
Vice Chairman Kolbeck moved to adjourn the meeting. Motion passed 3-0.
There being no further business, at the hour of 11:53 am the South Dakota Public Utilities Commission Meeting adjourned. The next Commission meeting is scheduled for October 6, 2009.
/S/Demaris Axthelm
Demaris Axthelm
Administrative Secretary
December 8, 2009
